Summary
noting that the trial court's inquiry into the demands on defendant's time and his employment status showed that it considered his financial ability to make restitution payments
Summary of this case from State v. Chit Wai YuOpinion
No. CAAP–13–0001014.
2014-03-28
STATE of Hawai‘i, Plaintiff–Appellee, v. Jayvan CURIOSO, Defendant–Appellant. and Jeffrey Vallejos, Jonathan D. Bagay, Defendants.
Nevertheless, the circuit court's imposition of restitution as a condition of probation was mandated by statute. Pursuant to Hawaii Revised Statutes (HRS) § 706–646(2) (Supp.2006), a court is required to order the defendant to make restitution when requested by the victim. Curioso does not dispute that the amount of the restitution that the circuit court ordered in granting his motion for deferral was proper. In addition, under HRS § 706–624(1)(g) (Supp.2006), a court is required to make restitution ordered pursuant to HRS § 706–646 a mandatory condition of probation. In my view, the circuit court's failure to impose restitution as a mandatory condition of probation when it sentenced Curioso to probation on September 1, 2011, as required by HRS §§ 706–646(2) and 706–624(1)(g), rendered Curioso's sentence an illegal sentence. Under Hawai‘i Rules of Penal Procedure (HRPP) Rule 35 (2003), a court may correct an illegal sentence at any time. Therefore, the circuit court did not err in entering its May 1, 2013, order, which modified Curioso's probation and corrected its illegal sentence by making Curioso's payment of restitution a condition of his probation. See State v. Fry, 61 Haw. 226, 228–31, 602 P.2d 13, 15–17 (1979) (rejecting the defendant's challenge to the trial court's correction of an illegal sentence pursuant to HRPP Rule 35).